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Consumer Bankruptcy Law and Practice: Form 177 Expedited Motion for Appointment of Committee of Consumer Creditors

[Editor’s Note.476] [Caption: Official Form 416A]

Expedited Motion for Appointment of Committee of Consumer Creditors

Movant, by her attorneys, hereby requests that the Court order the appointment of a committee of consumer creditors on the following grounds:

1. Movant is a creditor of the Debtor.

2. Movant’s claim arises from her prepetition payment of $1150 to the Debtor for home furniture which was never delivered.

Consumer Bankruptcy Law and Practice: Form 182 Chapter 12 Plan

[Editor’s Note.483] [Caption: Official Form 416A]

Chapter 12 Plan

COMES NOW the debtor and debtor-in-possession [debtor], by and through [attorney for debtor], and submits the following chapter 12 plan of reorganization in satisfaction of all claims.

1. On [filing date] (Filing Date), [debtor] filed a Petition under chapter 12 of the United States Bankruptcy Code, 11 U.S.C. §§ 1201–1231 (Code).

Unfair and Deceptive Acts and Practices: 13.2.6.3 Scope Issues

State attorneys general and state regulators may enforce the UDAAP standard or a UDAAP rule against any “covered person”86 as long as the entity that is “State-chartered, incorporated, licensed, or otherwise authorized to do business under State law.”87 The state attorney general—but not a state regulator—can also sue a national bank or federal savings association, but only if it violates a CFPB-issued UDAAP rule.

Unfair and Deceptive Acts and Practices: 13.3.3 Standards of Review for Compulsory Process

The fundamental standards courts utilize in determining the propriety of a civil investigation demand or subpoena are whether “the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant.”103 These standards, articulated by the Supreme Court under the Fourth Amendment’s prohibition of unreasonable searches and seizures,104 should be construed liberally in favor of the government because of the remedial purposes of UDAP le

Unfair and Deceptive Acts and Practices: 13.3.4.1 Due Process

Courts consistently uphold subpoenas and CIDs against due process challenges.139 Procedural due process is satisfied where there is specific notice of documents to be produced and a meaningful opportunity to be heard.140 Court review of the state’s subpoena is sufficient protection against unconstitutional searches.141 While a subpoena ordering production of records “forthwith” without sufficient opportunity to consult counsel may deny the responde

Unfair and Deceptive Acts and Practices: 13.3.4.2 Self-Incrimination

A respondent’s constitutional protection against self-incrimination is a legitimate ground for resisting a subpoena in some circumstances. However, to invoke the Fifth Amendment the defendant cannot simply refuse to respond to the subpoena, but must appear and then object to specific document requests.146

Unfair and Deceptive Acts and Practices: 13.3.5.1 Reasonable or Probable Cause

In a number of states, enforcement officials must have “reasonable cause” or “probable cause” to believe the UDAP statute has been violated before they can issue a CID or subpoena.

As a general rule, the state need not have reasonable or probable cause unless there is an express requirement in the authorizing statute.165 Nevertheless, some state courts do read a reasonable cause requirement into the UDAP legislation.166

Unfair and Deceptive Acts and Practices: 13.3.6 Defects on the Face of a Subpoena

State enforcement officials should be careful in drafting CIDs and subpoenas to make sure that the compulsory process fulfills all statutory requirements. Litigious respondents will scrutinize the process hoping to find a technical defect. While it is good practice not to give respondents grounds for objecting to the form of the subpoena, courts will usually enforce compulsory process even if there are complaints as to form.